Promulgation Date: 2020-9-25 Title: Guiding Opinions of the Supreme People's Court on Further Expanding People's Court Services and Safeguards for Expanding Opening Up to the World Document Number: Expiration date: Promulgating Entities:Supreme People's Court Source of text: WECHAT
The following Guiding Opinions have been formulated in light of the actual work of the people's courts in order to thoroughly implement the major strategic plans of the CPC Central Committee with Comrade Xi Jinping as the core for further expanding the opening to the outside world and promoting the formation of a new landscape for comprehensive opening, giving full play to the people's courts' adjudication functions and providing powerful judicial services and safeguards for the construction of a new and better open economic system.
I. Raise political stance and find places to integrate and focus judicial service guarantees for the expansion of opening to the world
1. Enhance the sense of responsibility and purpose in judicial service guarantees for the expansion of opening up to the world. Further opening up to the outside world is an objective requirement for comprehensively deepening reforms, promoting high-quality economic development, and building a new higher-level open economic system; it is an urgent requirement for deepening marketization reforms and creating a business environment that is brought under law, internationalized, and convenient; it is an inevitable trend for coping with the unprecedented changes of the past 100 years, promoting reforms of the global governance system, and promoting cooperative, win-win system for openness; and it is a practical action in support of economic globalization and building a common future for humanity. The implementation of a wider, broader, and deeper level of comprehensive opening signifies that our country has entered a new stage of transition from openness of commodity and material flow to openness of rules and other systems openings, and higher demands are placed on the market's legal environment and judicial service safeguards. The people’s courts should be guided by Xi Jinping’s Thought on Socialism with Chinese Characteristics for the New Era, fully implement the spirit of the 19th National Congress of the Communist Party of China and the second, third and fourth plenary sessions of the 19th Central Committee, to fully understand the new requirements and challenges for the people's courts in the situation of further opening up, accurately grasp the goals and tasks of judicial service guarantees for further expanding opening-up to the world, accelerate the establishment modernization of trial systems and judicial capabilities related to foreign-interests, serve the overall situation of the country, optimize the business environment, deepen international cooperation, and stabilize the basic market for foreign and foreign investment, with a higher level of judicial services to ensure a higher level of opening up.
2. Identify places for integration and focus of judicial service guarantees. People's courts must give full play to their trial functions, try foreign-related cases in a fair and efficient manner, protect the legitimate rights and interests of Chinese and foreign parties, and promote fair competition between domestic and foreign enterprises. We should focus on service safeguards for major national strategic measures, promoting "the belt and road initiative", the establishment of free trade pilot zones, the establishment of the Hainan free trade port and the Guangdong-Hong Kong-Macao Greater Bay Area free trade zone, coordinated development of Beijing-Tianjin-Hebei, regional integration of the Yangtze River Delta, development of Yangtze River Economic Belt, construction of Shenzhen first demonstration zone of socialism with Chinese characteristics, construction of China-Shanghai Cooperation Organization local economic and trade cooperation demonstration zone, and construction of maritime power. We should innovate the trial mechanism, researching forward-looking and innovative issues, improving the rules for the application of law, and promoting the creation of a stable, fair, transparent, and predictable legalized, internationalized, and convenient business environment.
II. Adhere to the basic principles of litigation involving foreign interests to lawfully protect the lawful rights and interests of domestic and foreign parties
3. Uphold equal protections in accordance with law. Persist having the equal protection of the lawful rights and interests of Chinese and foreign parties permeate the entire process of judicial work, ensure that Chinese and foreign parties have equal status and rights in litigation and that the law is applied equally with equal legal protections, and strive to provide Chinese and foreign parties with judicial services that are inclusive and impartial, convenient and efficient, intelligent and precise to create a market environment where all types of entity lawfully and equally use resources, compete openly, fairly, and justly compete, and receive the same level of market protections.
4. Respect the autonomy of the parties. Fully respect and protect the right of Chinese and foreign parties to choose a court with jurisdiction in accordance with the law, the right to choose the applicable law in accordance with the law, and the right to choose mediation, arbitration, or litigation to resolve disputes, and enhance the autonomy of international commercial dispute resolution.
5. Exercise jurisdiction in accordance with the law. Correctly exercise judicial jurisdiction in accordance with the laws of our nation to effectively preserve our nation's judicial sovereignty and to provide timely and effective judicial relief to domestic and foreign entities. While resolutely preserving our nation's judicial jurisdiction, also properly resolve conflicts involving foreign-related jurisdiction and issues of parallel international litigation.
III. Thoroughly advance the modernization of the trial systems for commercial and maritime matters involving foreign interests, in service of freeing and facilitating trade and investment
6. Promote improvements in the system of rules for the application of law in cases involving foreign interests. Accurately apply international treaties, international practices, and applicable laws in foreign-related commercial maritime trials, accurately identify and apply foreign laws, give play to the guiding role of court guidance rules, and guide market entities to strengthen their connection with international rules in foreign-related transactions. Truly implement the Civil Code, promptly improve related judicial interpretations, release guiding cases, and uniformly apply legal standards. Accurately apply laws and regulations on foreign investment and their judicial interpretations, fully implement the pre-admission national treatment plus negative list management system for foreign investment, strictly limit the criteria for invalidating foreign investment contracts, and protect the lawful rights and interests of Chinese and foreign investors in accordance with the law. Actively participate in the formulation of international treaties and rules, promote the process of revising laws such as the Arbitration Law, Maritime Traffic Safety Law, Maritime Law, and Special Procedures for Maritime Litigation, and promote the improvement of international transportation rules such as international multimodal transportation of goods and transnational railway transportation documents. Support our country's participation in the formulation of international rules and standards in the fields of finance, trade, energy, intellectual property, digital information, agriculture, environmental protection, and hydropower, and promote the formation and improvement of legal rules for global commerce. Publish guiding cases and example cases from Chinese court judgments in multiple languages to provides a basis for the courts and arbitration bodies in all countries to correctly understand and apply Chinese law, and to enhance international commercial entities' understanding and faith in Chinese law, and expands the influence of Chinese law. Further enhance the function of the extraterritorial law ascertainment platform, standardize and improve the rules for extraterritorial law ascertainment and application, promote the establishment of legal resources and case databases for extraterritorial law ascertainment, and improve the people's courts' ability to identify and apply extraterritorial laws in foreign-related cases.
7. Give play to the specialized advantages of trial services for commercial and maritime matters involving foreign interests in safeguarding cross-border trade. Firmly support the multilateral trading system and economic globalization, properly handle disputes concerning the international sale of goods, cross-border investment mergers and acquisitions, finance guarantees, and e-commerce in accordance with the law, actively promote the development of emerging forms of trade such as cross-border service trading and digital trading to effectively protect production and supply chains. Properly and promptly hear relevant maritime cases such as port construction, ship construction, shipping finance, maritime cargo transportation, cruise transportation, and marine ecological protection. Explore specialized trial mechanisms for cases on the China-Europe Express, the new land-sea corridor, and international road transport, and provide judicial service safeguards for advancing the construction of international logistics and trade corridors such as the China-Europe Express and the Western Land-Sea New Corridor. Appropriately hear foreign-related commercial and maritime cases involving the Covid-19 epidemic in accordance with law, improve the efficiency of trials of commercial and maritime cases involving foreign interests, and provide services aimed to ensure stable foreign investment, stable foreign trade, and the healthy development of the shipping market.
8. Promote the deep integration of trials involving foreign interests and the online judiciary. Adapt to the needs of the new open economic system, making full use of achievements in smart court construction, and strengthening the application of cutting-edge technologies such as big data, cloud computing, blockchain, artificial intelligence, and 5G in trials involving foreign interests. Establish a litigation service platform for parties outside the territory to provide efficient, convenient, and low-cost judicial services for parties outside the territory. Improve mechanisms such as for online filing, online mediation, and online trial of cases involving foreign interests, and based on the parties' consent, use information technology to make Chinese and foreign parties' participation in litigation as convenient as possible. Explore and improve online litigation rules for foreign-related cases and improve the informatization level of foreign-related adjudication. Encourage and support Internet courts and other courts with a good foundation for information technology to innovate judicial service methods and media, and take the lead, accumulate experience, and innovate rules in areas such as the trial of cases involving foreign interests, platform construction, litigation rules, technology use, and cyberspace governance.
9. Improve diverse dispute resolution mechanisms for international commercial disputes. Promote the construction of the Supreme People’s Court International Commercial Court, optimize case-handling procedures and working mechanisms, and improve the informatization of the “one-stop” dispute resolution platform of the International Commercial Court. Encourage and respect the parties use of agreements to select international commercial court jurisdiction over their international commercial disputes, giving play to the active role of agreements on jurisdiction to the extent possible. Expand the scope of selection of expert members of the International Commercial Expert Committee of the Supreme People's Court, and give full play to the functions of the International Commercial Expert Committee. Properly introduce well-known foreign commercial arbitration institutions and commercial mediation institutions into the "one-stop" diversified international commercial dispute resolution mechanism, promote the construction of the "Belt and Road" international commercial legal service demonstration zone, and provide Chinese and foreign parties with fair, efficient and convenient judicial services. Support the establishment of stronger international commercial adjudication forces in areas such as the Lingang New Area of the Shanghai Pilot Free Trade Zone and the Hainan Free Trade Port, giving full play to professional adjudication functions, and providing high-quality judicial safeguards for the innovative development of the free trade zones (ports). Support overseas arbitration institutions in registering and filing to establish business institutions in specified regions to accept international arbitration cases in accordance with arbitration agreements. Support the Hong Kong Special Administrative Region in establishing an international legal and dispute resolution service center in the Asia-Pacific region, jointly building an international legal service center and an international commercial dispute resolution center in the Guangdong-Hong Kong-Macao Greater Bay Area, and supporting Hong Kong and Macau lawyers participation in dispute resolution as mediators. Support the development of pilot projects on Hong Kong legal practitioners and Macao practicing lawyers to engage in the legal professions in nine cities in the Guangdong-Hong Kong-Macao Greater Bay Area. Support border areas, important node cities, and core areas in exploring regional bilateral and multilateral mechanisms for cooperative dispute resolution and in establishing a joint dispute resolution platform in accordance with the principles of joint construction and sharing.
IV. Increase the force of judicial protections for each aspect of opening up to the world, creating a commercial environment that is legalized, internationalized, facilitated,
10. Support the government's in-depth advancement of the reform of "streamlining administration and improving services". Try administrative cases involving foreign trade, investment and financing, finance and taxation, financial innovation, intellectual property protection, entry and exit management, customs supervision, etc. according to law, adhere to the principle of legality review, and impose administrative licensing, administrative penalties, administrative enforcement and other administrative actions in accordance with the law. Carry out judicial review, protect the legal rights and interests of administrative counterparts in accordance with the law, supervise and support administrative agencies in their administration according to law, strengthen the substantive resolution of administrative disputes, and promote the construction of a government under the rule of law and the integrity of government affairs. Correctly handle the relationship between the government and the market, give full play to the decisive role of the market in the allocation of resources, and at the same time give better play to government functions, promote the formation of a market supervision pattern with clear powers and responsibilities, fairness and justice, transparency and efficiency, and the rule of law, and adjust the country's macroeconomic policies Provide judicial protection.
11. Strengthen the force of intellectual property rights protections. Strictly implement the system of punitive damages for intellectual property rights violations, to truly give play to the deterrent effect of punitive damages. Strengthen protections of commercial secrets, lawfully regulating monopolies and unfair competition to preserve a uniformly open, fair, and orderly market environment. Complete a system of judicial protections for technical innovation to increase the force of intellectual property protections for key sectors and core technologies. Improve procedures for intellectual property litigation involving foreign interests, strengthen research and response to parallel international litigation on intellectual property rights, to build a preferred location relied on by parties to resolve intellectual property rights disputes. Strictly enforce the Foreign Investment Law and related administrative regulations to properly hear cases of foreign technology transfer and to ensure that domestic and foreign enterprises carry out international and inter-regional technological exchanges and cooperation in accordance with market and legal principles. Resolutely punish violations of intellectual property rights in accordance with law.
12. Properly handle cross-border bankruptcy, financial, and enforcement cases. Adhere to the principle of equal protection for similar claims, actively participate in and promote the formulation of international treaties on cross-border insolvency, improve the coordination mechanisms for cross-border insolvency, and protect the rights and interests of creditors and investors in accordance with the law. Increase the level of professionalism in trials involving financial disputes involving cross-border investment and financing, securities, and insurance. Properly hear cross-border financial disputes in accordance with the law, accurately determine the legal effect of cross-border investment activities that circumvent national foreign exchange control policies, and further regulate and unify the application of cross-border financial laws. Strengthen cooperation with financial management institutions, trade associations, and mediation organizations, further promote the construction of diversified solution mechanisms for disputes over banking, securities, futures, and insurance; protect the legitimate rights and interests of financing consumers, prevent and resolve financial risks, and promote the sustained and healthy development of the financial industry. Strengthen the degree of enforcement in cases involving foreign interests, deepen international cooperation on cross-border enforcement, and equally safeguard the timely realization of the rights and interests of winning Chinese and foreign parties in accordance with the law. Actively promote the construction of a social credit system and create a good credit environment and business environment.
V. Prevent and resolve all kinds of major risks to resolutely preserve a stable development environment
13. Complete risk control mechanisms for major cases. Firmly establish an overall national security concept, coordinate the overall international and domestic situations, adhere to bottom-line thinking and risk awareness, soberly understand the domestic and international situation and risk challenges facing my country’s opening up, improve the risk identification and prevention and control mechanisms for major cases, and properly handle trade and investment , Financial, data flow, ecology and public health and other fields to prevent and resolve various major risks. Strictly abide by the basic principles of international law and norms of international relations, and resolutely defend our judicial sovereignty and national security.
14. Safeguard national security and the order of economic and social development. Thoroughly participate in the struggle against infiltration, espionage, separatism, terrorism, and cults, by strictly combatting crimes of infiltration, subversion, and sabotage, and crimes of espionage, violent terrorism, ethnic separatism, religious extremism, and other crimes that endanger national security. Further strengthen cooperation in criminal justice, by working together to combat cross-border crimes. Lawfully punish crimes that endanger national economic security in sectors such as investment, trade, finance, telecommunications networks, and intellectual property rights, by actively participating in the establishment of overseas security and protection systems and vigorously preserving out nation's developmental interests and the safety of foreign entities and individuals. Strictly punish crimes that endanger the people's safety such as those involving food and drug safety, environmental pollution, drug trafficking, and human trafficking and crimes that disrupt social management and the order of the socialist market economy in accordance with law, to provide a safe and stable social environment and good economic and social order for further expanding the opening to the world. Actively participate in the establishment of network security systems and jointly combat transnational and cross-regional cybercrime harming citizens' personal information, strengthening legal protections for personal information, and actively building a cyberspace community with a shared future.
VI. Deepen international judicial assistance and judicial exchanges and cooperation, to increase the international influence of the Chinese judiciary
15. Strengthen international judicial assistance. Actively participate in the conclusion of bilateral or multilateral judicial assistance treaties, strictly follow the international treaties that our country has concluded or participated in with other countries, take active measures based on the principle of reciprocity, and promptly handle the delivery of judicial documents, investigation and collection of evidence, recognition and enforcement of foreign civil and commercial courts International judicial assistance requests such as judgments and foreign arbitration awards. Improve the procedural rules and review standards for the recognition and enforcement of civil and commercial judgments of foreign courts. Identify mutually beneficial relations with a more open and inclusive judicial attitude, and promote mutual recognition and enforcement of civil and commercial judgments among countries. Strengthen cross-border judicial cooperation, participate in completing a network of bilateral judicial assistance treaty network, and build a judicial environment conducive to a new system of open economy.
16. Deepen international judicial exchanges and cooperation. Further broaden the channels for international judicial communication, and strengthen the breadth and depth of cooperation with the World Trade Organization, the United Nations Commission on International Trade Law, the World Bank Group, the World Intellectual Property Organization, the International Court of Justice and other international organizations. Actively participate in reforms of global governance systems and the drafting of international legal rules, Through consultation and signing of memorandums with the Supreme Court of various countries or regions, we will strengthen exchanges and mutual learning in key areas such as informatization construction, judicial reform, case research, identification of law, mutual recognition and enforcement of civil and commercial judgments, and promote cooperation in the rule of law. Strengthen external publicity on China's judicial system, judicial culture, judicial reform, and smart court construction, tell stories about the rule of law in China, and spread the voice of the rule of law in China.
17. Vigorously cultivate a team of high-quality personnel for trials related to foreign interests. To meet the needs of international judicial exchanges and cooperation in the fields of economy and trade, finance, science and technology, intellectual property, environmental protection, marine and other fields, as well as foreign-related trials, improve the introduction, selection, use, and management mechanisms of foreign-related trial talents, strengthen the practice-oriented talent training mechanism, and develop people. The courts and institutions of higher learning will exchange and jointly cultivate foreign-related legal talents to cultivate and reserve foreign-related legal talents. Establish a normal exchange mechanism with relevant international organizations and international commercial courts of other countries, actively support foreign-related judges to participate in international exchanges, participate in the formulation of international rules in related fields, and cultivate foreign-related legal professionals with an international perspective, familiar with international laws and regulations, and familiar with foreign laws. Further improve the level of foreign-related trials.
My blogpost provides some analysis of the document above https://supremepeoplescourtmonitor.com/2020/10/09/supreme-peoples-courts-new-policy-document-on-opening-to-the-outside-world/